Fenwick & Temple (No. 2) - [2021] FamCA 221

FAMILY COURT OF AUSTRALIA
Fenwick & Temple (No. 2) [2021] FamCA 221

File number(s): BRC 13499 of 2017

Judgment of: CAREW J

Date of judgment: 20 April 2021

Catchwords: FAMILY LAW – ORDERS – Stay – Where the husband argues that he is unable to make the payment of the settlement sum as ordered because he does not have the funds available and does not have assets that can be readily realised – Where the husband argues that a refusal to grant the stay will cause him prejudice if he is required to sell assets – Where the wife opposes the granting of a stay as sought by the husband – Where it is found that the balance of convenience favours the stay of at least part of the payment of the settlement sum – Where it is found that a sum of $2,000,000 is a reasonable sum given the current balance in the bank account controlled by the husband – Where upon payment of that amount the husband’s requirement to pay periodic spousal maintenance will cease – Where the stay is granted on terms and conditions.

Legislation: Family Law Rules 2004 (Cth)

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Anderson & Senior (Stay Appeal) (2013) FLC 93-556

Bele & Vaughan [2011] FamCA 724

Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] 2 Qd R 453

Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

Number of paragraphs: 20

Date of hearing: 20 April 2021

Place: Brisbane

Counsel for the Applicant: Mr Bunning

Solicitor for the Applicant: Evans Brandon Family Lawyers

Solicitor for the Respondent: HopgoodGanim Lawyers
ORDER

BRC 13499 of 2017

BETWEEN:
MR TEMPLE

Applicant husband

AND:
MS FENWICK

Respondent wife

ORDER MADE BY:

CAREW J

DATE OF ORDER:

20 APRIL 2021

THE COURT ORDERS THAT:
1.Paragraphs 21 to 23 (inclusive) of the order made by this Honourable Court on 26 February 2021 be stayed pending the determination of appeal number NOA15/2021 on the following terms and conditions:
(a)The payment of $2,000,000 by Mr Temple to Ms Fenwick as a part payment of the settlement sum by the settlement date, namely, 27 April 2021;
(b)Upon payment of the said sum, paragraphs 3 (a), (b) and (c) of the order made by this Honourable Court on 14 May 2018 be discharged;
(c)Paragraph 2 of the order made on 26 February 2021 be varied by deleting the words “upon the date of settlement” and substituting the words “as soon as reasonably practicable”;
(d)Mr Temple be restrained from disposing of or further encumbering his interests in the Temple Group (as defined in the order made by this Honourable Court on 26 February 2021) and his family home without the prior written consent of Ms Fenwick save to meet day to day living expenses for himself and his family, the payment of spousal maintenance (including the payment of outgoings and maintenance of the D Street real property), child support, legal fees…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fenwick & Temple (No. 2)

Details

AGLC: Fenwick & Temple (No. 2) [2021] FamCA 221
Case: [2021] FamCA 221
Decision Date: 20 April 2021

CaseChat Overview and Summary

In the matter of *Fenwick & Temple (No. 2)*, Mr Temple sought a stay of certain orders made by the Family Court of Australia on 26 February 2021, arguing he lacked the funds to make the ordered settlement payment and that a refusal to grant the stay would cause him prejudice due to the potential forced sale of assets. Ms Fenwick opposed the application for a stay.

The central legal issue before Carew J was whether the balance of convenience favoured granting a stay of the settlement payment, and if so, on what terms and conditions. The court was required to consider the husband's financial circumstances and the potential prejudice he might suffer against the wife's opposition to the stay.

Carew J found that the balance of convenience supported granting a stay of at least part of the settlement payment. The court determined that a sum of $2,000,000 was a reasonable amount to be paid, given the husband's available bank balance, and that upon payment of this sum, his obligation to pay periodic spousal maintenance would cease. The court then made detailed orders, including staying the payment of $2,000,000 pending the determination of an appeal, discharging certain prior spousal maintenance obligations upon that payment, varying the timing of another payment, and imposing mutual restraints on the disposal or encumbrance of specified assets by both parties, with certain exceptions for necessary expenses and obligations.

Orders

Orders of the court

1. Paragraphs 21 to 23 (inclusive) of the order made by this Honourable Court on 26 February 2021 be stayed pending the determination of appeal number NOA15/2021 on the following terms and conditions:

(a) The payment of $2,000,000 by Mr Temple to Ms Fenwick as a part payment of the settlement sum by the settlement date, namely, 27 April 2021;

(b) Upon payment of the said sum, paragraphs 3 (a), (b) and (c) of the order made by this Honourable Court on 14 May 2018 be discharged;

(c) Paragraph 2 of the order made on 26 February 2021 be varied by deleting the words “upon the date of settlement” and substituting the words “as soon as reasonably practicable”;

(d) Mr Temple be restrained from disposing of or further encumbering his interests in the Temple Group (as defined in the order made by this Honourable Court on 26 February 2021) and his family home without the prior written consent of Ms Fenwick save to meet day to day living expenses for himself and his family, the payment of spousal maintenance (including the payment of outgoings and maintenance of the D Street real property), child support, legal fees and to complete the purchase of the second Z Town property if required;

(e) Ms Fenwick be restrained from disposing of or encumbering the Country J real property (as defined in the order made by this Honourable Court on 26 February 2021).

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	BRC 13499 of 2017
Judgment of:	CAREW J
Date of judgment:	20 April 2021
Catchwords:	FAMILY LAW – ORDERS – Stay – Where the husband argues that he is unable to make the payment of the settlement sum as ordered because he does not have the funds available and does not have assets that can be readily realised – Where the husband argues that a refusal to grant the stay will cause him prejudice if he is required to sell assets – Where the wife opposes the granting of a stay as sought by the husband – Where it is found that the balance of convenience favours the stay of at least part of the payment of the settlement sum – Where it is found that a sum of $2,000,000 is a reasonable sum given the current balance in the bank account controlled by the husband – Where upon payment of that amount the husband’s requirement to pay periodic spousal maintenance will cease – Where the stay is granted on terms and conditions.
Legislation:	Family Law Rules 2004 (Cth)
Cases cited:	Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Anderson & Senior (Stay Appeal) (2013) FLC 93-556 Bele & Vaughan [2011] FamCA 724 Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] 2 Qd R 453 Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349
Number of paragraphs:	20
Date of hearing:	20 April 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Bunning
Solicitor for the Applicant:	Evans Brandon Family Lawyers
Solicitor for the Respondent:	HopgoodGanim Lawyers

ORDER MADE BY:	CAREW J
DATE OF ORDER:	20 APRIL 2021